Virginia free press. (Charlestown, Va. [W. Va.]) 1832-1916, 1887-03-31

by the words 'by resignation, and then de-
stroyed those qualifications by putting in
the additional words 'or otherwise In
other words, YOU use the word otherwise,
so as to leave the power without any quail
fcation, as though it read if vacancies
should happen to occur during the recess of
the Legislature the Governor may fill them
by temporary appointments That is your
meaning" 81 submit to Senators that the
very position itself is absurd, for there are
we'll settled rules of law for the cOnstruc-
ton of this sentence. You cannot take
sentence that way and use one word to de-
stroy the meaning of other words. You
cannot take a general phrase and use it to
destroy the meaning of specific phrase.
On the contrary you must restrain and
qualify the general phrase by the meaning
of the specific phrase.
| That is the rule. You must restrict the
word otherwise here. Do not destroy the
word otherwise do not let the word 9th
erwise' destroy the word resignation; but
YOU must use the word otherwise rs appli.
cable to cases like resignation, that is ca
SEES of casualty. Therefore, what does the
word otherwise mean in this connection
II means death, removal, expulsion, failure
70 accept, or a vacancy happening by any
other casualty. Instead of saying 'vacan-
cies which happen by resignation, death,
removal, promotion or anything else, the
trainers used the words by resignation or
otherwise intending the one word resigna-
ton to show you that the word otherwise
was to be applicable only 10 cases like that
governed by resignation that is cases of
casualty, which might happen"
Senator Carpenter earnestly supported
this same view. He said in this connection:
"The language of the Constitution is not if
there shall at any time be vacancy the Gov
| ernor may appoint, To have effect until the
next meeting of the Legislature, but it must
be a vacancy happening in the recess of the
| legislature a vacancy happening upon what
| the Legislature has done vacancy occurring
in a term which the Legislature has filled. |
| say that is the plain meaning of the Constitu-
ton comparing its fferent provisions, and
repeat that this word happen here was used
| felcitouSy because it embodies the element of
chance, and shows that in order to authorize
the Governor to make an appointment there
must he vacancy which has happened by
resignation or otherwise, in other words by
resignation and so forth. That is by resigna-
ton or some other unexpected cause
Mr.. Conkling strikingly illustrated the
danger of so constituting the Constitution,
when full term was to be filled, and the
Legislature had failed, omitted, or for any
cause did not elect the Senator, as to permit
the Governor of State to appoint to the
vacancy. He said:
If it should be the established law that
wherever a Legislature decided not TO elect
the power 10 fill the vacancy should revert to
the executive of the State the Senate and all
of Us must see how exposed the whole process,
of filling seats in the Senate would become
because the Governor and his friends by cabal
intrigue, maneuver, might SO arrange that the
legislature would decide not to elect or would
fail TO elect i'm order that the Governor might
gather 10 himself the power TO fill the vacancy
The next Legislature might decide not TO elect
and 50 indefinitely within the six years, the
executive power of a State might uSurp that
which the Constitution deposits with the legis
latiye power
During the discussion of the Bell case
other cases, involving the same question
were referred to and the opinions of distin
guished members of the L. 5. Senate al
different times were quoted A case arose
caused by the resignation of Mr. Clay il
1852. In that discussion as to the right Of
the executive of a State to appoint, Stephen
A. Douglas confined it entirely to such va
cancies as happen after the full term ha:
been filled by legislative choice. He said
The regular term of the Senators are fol
six years, and the vacancies herein provided
for are the unexpired portion of such terms
which are to be filled by the Legislature when
il can act and when it cannot act, TO be filled
bV temporary executive appointments Il
therefore Senator resign, or his seat is other
wise vacated ercept by The expiration Of his term
the vacancy i for his original period of service
to be temporarily appointed by the Governor
or filled by the Legislature.
Hon. James VI. Mason THE father Of the
editor of the West Virginia Democrat and
who ventured, at times, to differ from his
som said on the question.
"Unul Lanman's case. according to my rec
election it was considered by the Senate,
nqnJcaly ciloW considerations that ii was com
petent for the State executive when term eX-
pired, in the recess of the Legislature, TO treat
that as a vacancy and to nil it accordingly.
Such a practice was common until the decs-
ion IN Lanman'S case. ! confess that on look
| ing at the Constitution my first impression was
| thai the practice was correct, but on eXamin-
ing the Constitution and weighing it carefully
! and deliberately c1H mt cittcrtdiH doubt that
! The decision of Lanman's case was correct, and
that when Il term expires by constitutional
limitation, 10 is not a vacancy which the eX-
ccutive can fill Yet the decision in that case
set aside all former precelents and established
a new and correct rule.
General Cass expressed similar views.
Judge Butler of South Carolina long chair
man of the Judiciary Committee of the
Senate and Mr.. Badger, whom Ben. Hill
pronounced the best lawyer this country
has ever produced, expresses in the Phelps
case in 1854, the same opinion. But these
views and opinions will not be multiplied
to the exclusion of the consideration of the
other inquiries which are;
,. II the late executive appointment of
Senator be valid, will it not terminate with
the extra session of the Legislature? and
3. If that body adjourn without electing a
Senator does not all power in the Governor
to fl the vacancy thereafter cease?
Let US recall the provision of the Con-
stitution of the United States on this sub
jeet.
And if vacancies happen by resignation or
| otherwise during tbs recess OF the Legislature
of any State the Executive thereof may make
temporary appointments until the next meet
| ing of the Legislature, which shall then fill
| such vacancies